The price to pay for excessive surcharging

Articles Written by Sar Katdare (Partner), Angelica Sorn (Associate)

It has been over 5 years since the excessive payment surcharge laws were introduced but the ACCC’s recent action against Nine Entertainment Co (Nine) demonstrates that the ACCC will continue to enforce this law with vigour.

Businesses that charge customers a surcharge on card payments should ensure they are in compliance with the law to avoid infringement notices, redress payments and reputational harm.

The law

On 25 February 2016, new laws banning excessive payment surcharges were introduced into the Competition and Consumer Act 2010 (CCA). 

The law relates to charges imposed by a merchant for processing a payment (above the price of goods or services) or for using one payment method over another. Such charges will be excessive if they exceed permitted surcharges set by the Reserve Bank (where applicable) or the actual cost to the merchant of processing the payment.

The Nine action

The ACCC alleged that, between August and December 2020, surcharges where paid by consumers and advertisers in relation to subscription or advertising services provided by six Nine entities. 

Payments made using MasterCard and Visa credit and debit cards attracted surcharges in the range of 0.9 and 1.55 per cent.  Such surcharges were alleged to have exceeded the cost to Nine for processing the payments by between 0.09 and 0.84 per cent.

The outcome

Rather than commencing legal proceedings against Nine, the ACCC issued 12 infringement notices for the conduct totaling $159,840.00. 

In addition to paying this penalty, Nine will spend around $450,000.00 in redress payments for approximately 220,000 consumers in the form of either a one-off cash adjustment of $1.92 or a subscription extension.  Nine will also notify affected advertising customers that they may have been over-surcharged and are entitled to a refund. 

What you need to know

Although payment of an infringement notice does not equate to an admission of a contravention and such notices are generally a time and cost efficient mechanism to resolve excessive surcharging issues, the outcome may nonetheless be costly, taking into account the number of transactions, redress initiatives and reputational harm.  This may be the case even if the extent of surcharging is relatively minor, as it was for Nine.     

What you should do now

If you charge a fee for card transactions, you should ensure that the percentage falls within the range permitted by the Reserve Bank or does not exceed the actual cost of processing the payment. It may be prudent to ensure your systems pick up this compliance point whenever surcharges are increased over time.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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